SUPREME COURT OF QUEENSLAND
CITATION:
BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 222
PARTIES:
BRB MODULAR PTY LTD
(applicant)
v
AWX CONSTRUCTIONS PTY LTD
(first respondent)
and
THE ADJUDICATION REGISTRAR QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION)
(second respondent)
and
JORAM MURRAY (ALSO KNOWN AS JOHN MURRAY)
(third respondent)
FILE NO/S:
BS 7073/15
DIVISION:
Trial
PROCEEDING:
Application
DELIVERED ON:
22 July 2015
DELIVERED AT:
Brisbane
HEARING DATE:
22 July 2015
JUDGE:
Bond J
ORDER:
Delivered ex-tempore on 22 July 2015:
The order of the court is that:
Upon the applicant giving the usual undertaking as to damages and the applicant undertaking to provide security to the registry of $4,000,000.00 by way of bank guarantee in the sum of $3,270,108.02 and by payment into court (by way of cheque) the sum of $729,891.98 by 5 pm on 23 July 2015,
1. The first respondent be restrained until 6 pm on 28 July 2015 from:
(a) asking the second respondent to provide an adjudication certificate under section 30 of the Building and Construction Industry Payments Act 2004 (Act) on the basis of the decision of the third respondent (decision number 00003789) dated 10 July 2015 (Adjudication Decision);
(b) filing, or attempting to file, an adjudication certificate in respect of the Adjudication Decision as a judgment under section 31 of the Act;
(c) entering judgment against the applicant under section 31 of the Act in respect of the Adjudication Decision; or
(d) otherwise attempting to enforce the Adjudication Decision as a valid adjudication determination under the Act.
2. In respect of the Originating Application:
(a) the parties are to exchange submissions by 3pm on 27 July 2015; and
(b) the matter is set down for hearing for one day on the civil list on 28 July 2015.
3. Costs reserved.
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where the applicant is seeking an interlocutory injunction to restrain the first respondent from enforcing an adjudication determination pending the final hearing – where the first defendant concedes that a “prima facie” case had been shown by the applicant – where the main issue turns on the balance of convenience – relevance to such applications of the policy considerations underlying the Building and Construction Industry Payments Act 2004 (Qld)
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where an adjudicator’s decision was made in favour of the first respondent – where the applicant seeks to challenge the decision on the basis of jurisdictional error – whether the applicant should bear the risk that monies paid under an adjudicator’s decision may not be refunded in the event the adjudicator’s decision is void for jurisdictional error
Building and Construction Industry Payments Act 2004 (Qld), ss 29-31
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, cited
Filadelfia Projects Pty Limited v EntirITy Business Services…
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- AGLC
- BRB Modular Pty Ltd v AWX Constructions Pty Ltd [2015] QSC 222
- Case
- [2015] QSC 222
- Decision Date
CaseChat Overview and Summary
The court had to determine several key legal issues, including whether the adjudication decision was valid and binding under the Act, and if the first respondent was entitled to enforce it against the applicant. Additionally, the court needed to consider whether an injunction was appropriate to prevent the first respondent from taking certain actions based on the adjudication decision, and if the applicant had demonstrated sufficient grounds for such an injunction.
In its reasoning, the court found that there were serious questions to be tried regarding the validity of the adjudication decision, and that the applicant had shown a strong likelihood of success in its challenge to the decision. The court concluded that an injunction was warranted to prevent the first respondent from enforcing the adjudication decision until the substantive issues could be fully heard. The court also considered the undertakings provided by the applicant regarding damages and security, and set out specific terms for the injunction and the procedural steps for the hearing of the originating application.
The court ordered that the first respondent be restrained from enforcing the adjudication decision until further order. The applicant was required to provide security and pay a specified amount into court to secure the injunction. The court further directed the exchange of submissions by a set date and scheduled the hearing of the originating application for one day. Costs were reserved for later determination.
Orders
Orders of the court
Delivered ex-tempore on 22 July 2015:
The order of the court is that:
Upon the applicant giving the usual undertaking as to damages and the applicant undertaking to provide security to the registry of $4,000,000.00 by way of bank guarantee in the sum of $3,270,108.02 and by payment into court (by way of cheque) the sum of $729,891.98 by 5 pm on 23 July 2015,
1. The first respondent be restrained until 6 pm on 28 July 2015 from:
(a) asking the second respondent to provide an adjudication certificate under section 30 of the Building and Construction Industry Payments Act 2004 (Act) on the basis of the decision of the third respondent (decision number 00003789) dated 10 July 2015 (Adjudication Decision);
(b) filing, or attempting to file, an adjudication certificate in respect of the Adjudication Decision as a judgment under section 31 of the Act;
(c) entering judgment against the applicant under section 31 of the Act in respect of the Adjudication Decision; or
(d) otherwise attempting to enforce the Adjudication Decision as a valid adjudication determination under the Act.
2. In respect of the Originating Application:
(a) the parties are to exchange submissions by 3pm on 27 July 2015; and
(b) the matter is set down for hearing for one day on the civil list on 28 July 2015.
3. Costs reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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